[Federal Register Volume 68, Number 92 (Tuesday, May 13, 2003)]
[Proposed Rules]
[Pages 25748-25751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11694]



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Part III





Department of Agriculture





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Forest Service



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36 CFR Part 251



Special Uses; Managing Recreation Residences and Assessing Fees Under 
Cabin User Fee Fairness Act; Proposed Rule

  Federal Register / Vol. 68, No. 92 / Tuesday, May 13, 2003 / Proposed 
Rules  

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB83


Special Uses; Managing Recreation Residences and Assessing Fees 
Under Cabin User Fee Fairness Act

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rulemaking; request for comment.

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SUMMARY: The Cabin User Fee Fairness Act of 2000 directs the Forest 
Service to promulgate regulations and adopt policies for carrying out 
provisions of the act. Accordingly, the Forest Service is proposing 
changes to its special uses regulations and also to the related agency 
directives published elsewhere in this issue of the Federal Register. 
The proposed rule and agency directives set out requirements and 
provide direction to agency personnel for managing recreation residence 
uses and assessing fees for those uses of National Forest System lands 
pursuant to the act. Public comment is invited and will be considered 
in the development of the final rule and directives.

DATES: Comments must be received in writing by August 11, 2003.

ADDRESSES: Send written comments to Forest Service, USDA, Attn: 
Director of Lands, Mail Stop 1104, Washington, DC 20250-1104; by 
electronic mail to the World Wide Web/Internet site at http://www2.srs.fs.fed.us/cuffa/cuffa.html or by fax to (202) 205-1604. If 
comments are sent by electronic mail or fax, the public is requested 
not to send duplicate written comments via regular mail. In addition, 
only one response is required to address provisions contained in this 
proposed rule and the proposed directives published elsewhere in this 
part of today's Federal Register. Please confine written comments to 
issues pertinent to the proposed rule and directives; explain the 
reasons for any recommended changes; and where possible, reference the 
specific section or paragraph being addressed. Those responding to the 
proposed rule, directives, and appraisal guidelines may want to review 
the provisions of the Cabin User Fee Fairness Act of 2000 before 
formulating their response. A copy of the act may be viewed and 
downloaded from the World Wide Web/Internet site previously listed. The 
Forest Service may not include in the administrative record for the 
proposed rule and proposed directives those comments it receives after 
the comment period closes (see DATES) or comments delivered to an 
address other than those listed in this ADDRESSES section.
    All comments, including the names, street addresses, and other 
contact information about respondents, will be available for public 
review at the office of the Director, Lands Staff, Forest Service, 
USDA, 4th Floor South, Sidney R. Yates Federal Building, 1400 
Independence Ave., SW., Washington, DC, during regular business hours 
(8:30 a.m. to 4:30 p.m.), Monday through Friday, except holidays. Those 
wishing to inspect comments are encouraged to call ahead (202) 205-1256 
or (202) 205-1064, to facilitate access to the building.

FOR FURTHER INFORMATION CONTACT: Randy Karstaedt, Lands Staff (202) 
205-1256, Forest Service, USDA.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background
2. Major Provisions of the Cabin User Fee Fairness Act of 2000 
(CUFFA)
3. Section-by-Section Explanation of Proposed Revisions to 36 CFR 
part 251, subpart B
4. Regulatory Certifications

1. Background

    On August 16, 1988 (53 FR 30924), the Forest Service adopted a 
policy that set forth procedures for administering term special use 
permits that authorize privately owned recreation residences on 
National Forest System (NFS) lands. The 1988 policy included direction 
concerning the tenure and renewal of recreation residence term special 
use permits, and described procedures to be followed when a recreation 
residence site was needed for a higher public purpose. The 1988 policy 
also established a new procedure for assessing fair market value fees 
for this type of use and occupancy. In the 1988 policy the Forest 
Service designated as ``base fees'' those annual fees for recreation 
residence special uses permits that had previously been established 
during the years 1978 through 1982. Those base fees were determined as 
a result of appraisals of the fee simple fair market value of lots that 
were completed during that time period. The year of the appraisal 
during the years 1978 through 1982 served as ``year 1'' in a 20-year 
appraisal cycle in the 1988 policy.
    That policy was appealed to the Secretary of Agriculture on 
September 15, 1988. In general, the appellants alleged that certain 
aspects of the policy were flawed, in that they exceeded limitations in 
the statute authorizing recreation residence uses of the National 
Forests. In a decision dated February 15, 1989, the Assistant Secretary 
of Agriculture for Natural Resources and Environment remanded the 1988 
policy to the Forest Service for restudy and reformulation, and stayed 
the implementation of those specific provisions in the policy that were 
the subject of the appeal. None of the appeal or remand issues involved 
provisions in the 1988 policy concerning the appraisals of recreation 
residence lots, nor the determination and assessment of land use fees 
generally. Rather, the remand directed the agency to reconsider: (1) 
Nonrenewal provisions in recreation residence special use permits that 
would be applied when the agency determined a need to convert the use 
of a recreation residence site to a higher, or alternative, public 
purpose; (2) the policy's provisions requiring an automatic permit 
renewal 10 years prior to expiration (unless procedures for nonrenewal 
had been established); (3) provisions requiring the offering of an in-
lieu lot to those permit holders who received nonrenewal notices 
pursuant to the agency's finding to convert the use of a recreation 
residence site to some alternative public purpose; and (4) provisions 
weighted against consideration of commercial uses for sites when 
nonrenewal of the recreation residence use was contemplated.
    A final revised policy for recreation residences was adopted on 
June 2, 1994 (59 FR 28713). It revised the 1988 policy with new 
provisions identified in the appeal and remand concerning tenure, and 
clarified policy for determining the annual fee for recreation 
residences. However, those provisions that were revised and clarified 
in 1994 pertained only to annual fees for those permits affected by 
notices of nonrenewal for an alternative public purpose.
    As previously stated, the 1988 policy established base fees 
pursuant to recreation residence lot appraisals conducted during the 
years 1978 through 1982. Those base fee amounts were then indexed 
annually, using the annualized change in the economic indexing factor 
known as the Implicit Price Deflator-Gross National Product (IPD-GNP) 
as provided in the 1988 policy. The 1988 policy also established a 20-
year appraisal cycle for keeping recreation residence fees current with 
changes in fair market value.
    In accordance with the provisions of the 1988 and 1994 policies, 
the Forest Service began to appraise recreation residence tracts in 
1996, which was year 18 of the 20-year appraisal cycle for those lots 
appraised in 1978. Appraisals completed in 1997 revealed varying 
degrees of increases in the fair market

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value of recreation residence lots since they were last appraised in 
the late 1970's and early 1980's. In some locations and markets the 
increase in value was dramatic. Because annual land use fees are 
calculated on the basis of 5 percent of the fee simple value of each 
lot, increases in the appraised fee simple values of some lots exceeded 
the cumulative effect of 18 to 20 years of annual IPD-GNP indexing of 
fees, which resulted in corresponding increases in land use fees. Some 
of the more dramatic fee increases as a result of new appraisals were 
of significant concern to recreation residence permit holders, and to 
State and national associations that represent them. In response, 
recreation residence permit holders and associations of holders began 
to contact their Congressional representatives, requesting relief from 
the increased fees.
    Congress initially responded to these concerns on November 14, 
1997, in the Department of the Interior and Related Agencies 
Appropriations Act for Fiscal Year 1998, Public Law 105-83 (Pub. L. 
105-83). Section 343 of this act provided for a three-year phase-in of 
recreation residence fee increases when a new appraisal of a recreation 
residence lot results in fees that exceeded 100 percent of the previous 
land use fees.
    In fiscal year 1999, Congress responded to the concerns of 
recreation residence permit holders on the Sawtooth National Forest in 
Idaho by directing the Forest Service not to increase recreation 
residence fees on the Sawtooth National Forest in fiscal year 1999 by 
more than 25 percent of the fee paid during the prior fiscal year.
    In fiscal year 2000, Congress provided additional relief to 
recreation residence permit holders in section 342 of Public Law 106-
113 (Consolidated Appropriations for Fiscal Year Ending September 30, 
2000); which directed that recreation residence permit fees assessed 
during fiscal year 2000 could not exceed the fiscal year 1999 fee 
amount by more than $2000.
    Congress further addressed concerns with fee assessments for 
recreation residence uses with the October 12, 2000, passage of the 
Cabin User Fee Fairness Act of 2000 (CUFFA). One of the primary 
purposes of CUFFA is to establish a consistent and fair process for 
appraising the fee simple value of recreation residence lots on NFS 
lands.

2. Major Provisions of the Cabin User Fee Fairness Act of 2000 (CUFFA)

    The Cabin User Fee Fairness Act of 2000 (CUFFA) directs the 
Secretary of Agriculture to promulgate regulations and policies to 
implement the provisions of the act within two years of its passage. 
The major provisions of CUFFA include: (1) Establishment of a base 
annual fee for recreation residence special use permits that is 5 
percent of the appraised fee simple value of the lot; (2) direction for 
the establishment of new guidelines for conducting appraisals of 
recreation residence lots; (3) an appraisal cycle shortened from the 
current 20 years to 10 years; and (4) the right of appeal and judicial 
review of a base cabin user fee determination.
    Section 608 of CUFFA provides for annual adjustments to recreation 
residence fees based on changes to the Index of Agricultural Land 
Prices, published by the Department of Agriculture. Currently, the 
Forest Service adjusts annual fees for recreation residence using the 
2nd quarter to 2nd quarter change in the Implicit Price Deflator, Gross 
Domestic Product (IPD-GDP) with a 10 percent increase cap in any one-
year billing period. During the transition period identified in section 
614 of CUFFA, the Forest Service is continuing to use the IPD-GDP as 
the means for annually indexing fees. This direction was provided to 
agency managers on February 20, 2003, in interim directive 2709.11-
2003-1, issued to the Forest Service Handbook (FSH) 2709.11, chapter 30 
(68 FR 8197). The Forest Service shall, however, limit annual increases 
using the IPD-GDP to 5 percent in any one year during the transition 
period as provided in section 608(d) of CUFFA. When the transition 
period ends, the Forest Service will use the Index of Agricultural Land 
Prices to index annual fees as provided in section 608 of CUFFA.
    Section 606(a)(3) of CUFFA directs the Secretary to contract with a 
professional appraisal organization to develop appraisal guidelines for 
determining fees for recreation residences. The Forest Service 
contracted with The Appraisal Foundation (TAF) to assist in the 
development and review of the proposed appraisal guidelines. TAF is the 
single authority in the United States for development and 
interpretation of appraisal standards, such as those referenced in 
CUFFA. In addition, TAF is the only Congressionally recognized 
appraisal organization responsible for developing and interpreting the 
Uniform Standards of Professional Appraisal Practice (USPAP) as 
provided by the Financial Institutions Reform, Recovery, and 
Enforcement Act of 1989.
    TAF assisted the Forest Service in the development of the proposed 
appraisal guidelines. In its report dated October 8, 2002, TAF also 
documented that the proposed appraisal guidelines the Forest Service 
developed are in conformance with section 606 of CUFFA by stating: ``* 
* * they (draft appraisal guidelines) follow exactly the directions in 
the act.'' TAF did recommend minor, mostly editorial changes to the 
draft of the proposed appraisal guidelines. The revised draft appraisal 
guidelines are found in the proposed directives to Forest Service 
Handbook (FSH) 5409.12, Appraisal Handbook, section 6.9, exhibit 06, 
published elsewhere in this part of today's Federal Register.
    Section 611 of CUFFA provides for the right of appeal and judicial 
review for recreation residence permit holders. The Department has 
reviewed this requirement and has determined that current regulations 
at Title 36, Code of Federal Regulations, part 251, Land Uses, subpart 
C, Appeal of Decisions Relating to Occupancy and Use of National Forest 
System Lands (36 CFR part 251, subpart C) provide all holders of 
recreation residence term permits the right to appeal a written 
decision by an authorized officer regarding the issuance, approval, and 
administration of their permits. The authorized officer's 
implementation of a new base fee, pursuant to provisions outlined in 
the proposed rule and directives published elsewhere in this part of 
today's Federal Register, constitutes a written decision subject to 
these appeal regulations. Therefore, existing regulations at 36 CFR 
part 251, subpart C, already provide the right of appeal identified in 
section 611 of CUFFA, and the Department is not proposing any new or 
amended appeal regulations for implementing that section of CUFFA.
    Section 614 of CUFFA provides for a transition period during which 
the recreation residence fees in place on September 30, 1995, could not 
be increased by more than $3,000 from the amount of the annual fee in 
effect on October 1, 1996, excluding annual indexing. The transition 
period ends for a recreation residence permit holder when a base fee 
for their recreation residence is established through guidelines 
contained in final regulations, directives, and appraisal guidelines 
developed pursuant to CUFFA. The Forest Service issued an interim 
directive implementing these transition provisions for fee 
determinations on February, 20, 2003 (68 FR 8197) (ID 2709.11-2003-1 to 
FSH 2709.11).
    Pursuant to the provisions of CUFFA previously outlined, the Forest 
Service is proposing revisions to its special uses regulations at 36 
CFR part 251, subpart B, as set out in this notice, and also is

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proposing new appraisal guidelines and revisions to administrative 
procedures set out in proposed directives published elsewhere in this 
part of today's Federal Register.

3. Section-by-Section Explanation of Proposed Revisions to 36 CFR Part 
251, Subpart B

    Section 251.51--Definitions. This section of the current regulation 
defines many of the terms and phrases used in subpart B. The proposed 
rule would add a definition for a recreation residence lot as described 
in section 604 of CUFFA. Consistent with the act, a recreation 
residence lot includes all National Forest System (NFS) land on which a 
cabin owner is authorized to build, use, occupy, and maintain a cabin 
and related improvements. Therefore, a recreation residence lot is not 
necessarily confined to the plotted boundaries as shown on a tract map, 
but may include all of the area occupied by the recreation residence 
and its related improvements.
    Section 251.57--Rental Fees. This section of the current regulation 
describes how fees for special use authorizations are determined. 
Proposed paragraph (a)(3) would provide that the base fee for 
recreation residences would be established by appraisal or other sound 
business management principles pursuant to the provisions in CUFFA. 
Proposed paragraph (a)(3) would also state that the base cabin user fee 
is established as being 5 percent of the market value of the recreation 
residence lot. Proposed paragraph (i) would require that permits and 
term permits authorizing recreation residence uses state that the 
Forest Service shall recalculate the base cabin user fee at least once 
every 10 years by use an appraisal or other sound business management 
principles to calculate that fee as provided for in paragraph (a)(3).

4. Regulatory Requirements

Environmental Impact

    These proposed revisions establish administrative procedures for 
determining market value for recreation residences on National Forest 
System lands. Section 31.1b of Forest Service Handbook (FSH) 1909.15 
(57 FR 43180, September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement ``rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions.'' The agency's preliminary assessment is 
that this proposed rule falls within this category of actions and that 
no extraordinary circumstances exist which would require preparation of 
an environmental assessment or environmental impact statement.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This proposed rule 
would not have an annual effect of $100 million or more on the economy, 
or adversely affect productivity, competition, jobs, the environment, 
public health or safety, or State or local governments. This proposed 
rule would not interfere with an action taken or planned by another 
agency, or raise new legal or policy issues. Finally, this proposed 
rule would not alter the budgetary impacts of entitlements, grants, or 
loan programs or the rights and obligations of recipients of such 
programs.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. It has been 
determined that the proposed rule does not pose the risk of a taking of 
Constitutionally protected private property.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The agency has not identified any State or local 
laws or regulations that are in conflict with this proposed rule or 
that would impede full implementation of the proposed rule. 
Nonetheless, in the event that such a conflict were to be identified, 
the proposed rule, if implemented, would preempt the State and local 
laws or regulations found to be in conflict. However, in that case, (1) 
no retroactive effect would be given to this proposed rule; and (2) the 
Department would not require the use of administrative proceedings 
before parties may file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this proposed rule on 
State, local, and tribal governments and the private sector. This 
proposed rule would not compel the expenditure of $100 million or more 
by any State, local, or tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act is not 
required.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The agency has considered this proposed rule under the requirements 
of Executive Order 13132 on federalism, and has made an assessment that 
the proposed rule conforms with the federalism principles set out in 
this Executive order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the agency has determined that no further 
assessment of federalism implications is necessary at this time.
    Moreover, this proposed rule does not have tribal implications as 
defined by Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments, and, therefore, advance consultation with 
tribes is not required.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211 of 
May 18, 2001, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply.'' It has been determined that this proposed rule 
does not constitute a significant energy action as defined in the 
Executive order.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any record-keeping or reporting 
requirements or other information collection requirements as defined in 
5 U.S.C. part 1320 that are not already required by law or not already 
approved for use. Any information collected from the public as a result 
of this action has been approved by the Office of Management and Budget 
under control number 0596-0082. Accordingly, the review provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 251

    Electric power, Mineral resources, National forests, Rights-of-way, 
and Water resources.

    For the reasons set forth in the preamble, the Forest Service 
proposes to amend part 251 of title 36 of the Code of Federal 
Regulations as follows:

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PART 251--LAND USES

Subpart B--Special Uses

    1. The authority citation for part 251 is revised to read as 
follows:

    Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30 
U.S.C. 1740, 1761-1771.

    2. In Sec.  251.51 add a definition for ``recreation residence 
lot'' in the appropriate alphabetical order to read as follows:


Sec.  251.51  Definitions

* * * * *
    Recreation Residence Lot--a parcel of National Forest System land 
on which a holder is authorized to build, use, occupy, and maintain a 
recreation residence and related improvements. A recreation residence 
lot is considered to be in its natural, native state at the time when 
the Forest Service first permitted its use for a recreation residence. 
A recreation residence lot is not necessarily confined to the platted 
boundaries shown on a tract map or permit area map. A recreation 
residence lot includes the physical area of all National Forest System 
land being used or occupied by a recreation residence permit holder, 
including, but not limited to, land being occupied by ancillary uses 
such as septic systems, water systems, boat houses and docks, major 
vegetative modifications, and so forth.
* * * * *
    3. In Sec.  251.57 add new paragraphs (a)(3) and (i) to read as 
follows:


Sec.  251.57  Rental fees

    (a) * * *
    (3) A base cabin user fee for a recreation residence use shall be 5 
percent of the market value of the recreation residence lot, 
established by an appraisal or other sound business management 
principles conducted in accordance with the Act of October 12, 2000 (16 
U.S.C. 6201-13).
* * * * *
    (i) Each permit or term permit for a recreation residence use shall 
include a clause stating that the Forest Service shall recalculate the 
base cabin user fee at least every 10 years and shall use an appraisal 
or other sound business management principles to recalculate that fee 
as provided in paragraph (a)(3) of this section.

    Dated: May 3, 2003.
Dale N. Bosworth,
Chief.
[FR Doc. 03-11694 Filed 5-12-03; 8:45 am]
BILLING CODE 3410-11-P